Ms L Bone, Counsel For the v Respondent — 2023

This was an interim relief hearing only. Ms N Kemp applied for interim relief on the basis that her dismissal was because she had made a protected disclosure on a call with the Second Respondent on 21 March 2022. The tribunal applied the section 128 and 129 ERA 1996 test, referring to the need for a “pretty good chance of succeeding” and citing Taplin v Shipham Limited and Robinson.

On the material before it, the tribunal was not satisfied that the Claimant had shown a pretty good chance of proving that she made the alleged protected disclosure in that call, or that the surrounding circumstances supported that inference. It noted that there was no written or contemporaneous note of the alleged disclosure, that it was not followed up in writing, and that it was not raised in open inter partes correspondence until 19 November 2022. The tribunal also said the email exchanges it had seen did not themselves suggest that a protected disclosure had been made.

The tribunal accepted that there was material suggesting the Respondents had concerns about the Claimant’s performance and conduct, including FCA correspondence, the signing of a contract, and steps said to have been taken to monitor her inbox, but it made no final finding on the merits of those matters. Its primary conclusion was that the Claimant had not shown a pretty good chance of establishing that any post-21 March 2022 treatment was because she had made a protected disclosure, and so she could not show a pretty good chance of succeeding in a claim that a protected disclosure caused a fundamental breach entitling her to resign.

The application for interim relief was therefore refused. The judgment did not determine liability on the underlying constructive unfair dismissal or whistleblowing claims, and no remedy was awarded at this stage.